Wilbur Veasy v. Sheriff of Palm Beach County

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13174

Non-Argument Calendar

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D.C. Docket No. 9:15-cv-80486-BB

WILBUR VEASY,

Plaintiff-Appellant,

versus

SHERIFF OF PALM BEACH COUNTY,

Ric L. Bradshaw,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 14, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit

Judges.

PER CURIAM:

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Wilbur Veasy appeals the district court’s grant of summary judgment in

favor of his former supervisor, Sheriff Ric Bradshaw of the Palm Beach County

Sheriff’s Office.

I.

Veasy was hired by the Sheriff’s Office in 1987 as a corrections officer for

the Palm Beach County Jail.1 Over the next 25 years he was subject to multiple

disciplinary actions, including insubordination offenses in 1996, 2005, 2008, 2011,

2012, and 2013. The last of those offenses resulted in his termination.

The Sheriff’s Office written policy states that an employee has four hours to

report to Internal Affairs to provide a urine sample after being randomly selected

for a drug test. If the employee refuses to submit, fails to appear when directed,

refuses to sign any necessary consent forms, or tampers with a random test, he is

subject to discipline, up to and including termination for a first offense. In

November 2011 the Sheriff’s Office stopped accepting urine samples at Internal

Affairs and instead required all employees to travel to a third party, Coach Comp,

for drug testing. On February 5, 2013, the secretary for the Sheriff’s Office

Division of Internal Affairs notified Veasy that he had been randomly selected for

a drug test. At that point, over 250 corrections employees had submitted to a drug

test at Coach Comp. But the Sheriff’s Office written policy remained the same.

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Because Sheriff Bradshaw moved for summary judgment, we view the facts in the light

most favorable to Veasy. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999).

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Unaware of the change, Veasy went to Internal Affairs for his drug test.

When he arrived Sergeant Brett Combs ordered him to report to Coach Comp, but

Veasy refused, arguing that under the written policy he was not required to use his

personal vehicle to travel to a testing facility. He asked to drive an official vehicle,

but Sergeant Combs refused. He then again ordered Veasy to report to Coach

Comp in his personal vehicle. And when Veasy again refused, the matter was

escalated to Sheriff Bradshaw, who gave Veasy two options: either drive to the

test site in his personal vehicle or be placed on administrative leave. Veasy

responded that his “2007 red four door Tacoma is not going.” Sheriff Bradshaw

placed him on administrative leave.

Internal Affairs conducted an investigation into the incident and concluded

that Veasy had violated two office rules and regulations: (1) failing to comply

with a direct order from investigators and supervisors, and (2) refusing to submit to

a random drug test. Captain Frank Milo reviewed the results of the investigation,

considered Veasy’s prior disciplinary history, and recommended termination.

Sheriff Bradshaw agreed, and after a pre-disciplinary hearing Veasy was fired on

April 13, 2013.

Two years later he brought this employment discrimination suit, 42 U.S.C.

§§ 1981 and 1983, alleging that Sheriff Bradshaw’s proffered reason for firing him

was pretext for race discrimination. The district court granted summary judgment

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in favor of Sheriff Bradshaw, finding that he was entitled to Eleventh Amendment

immunity. Veasy appealed, and we reversed and remanded. On remand, the

district court granted Bradshaw’s renewed motion for summary judgment, finding

that Veasy failed to show the Sheriff’s legitimate reasons for firing him were

pretext for race discrimination.2 This is Veasy’s appeal.

II.

We review de novo the district court’s grant of summary judgment. Alvarez

v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a).

Veasy contends that the district court erred by granting summary judgment

in favor of Sheriff Bradshaw on his race discrimination claim. Section 1981

prohibits race discrimination in connection with the performance of a contract. 42

U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330–

34 (11th Cir. 1998) (reviewing discriminatory termination claim under § 1981).

Because § 1981 does not provide a cause of action against state actors, 42 U.S.C.

§ 1983 is the exclusive federal remedy for violation by state actors of the rights

2

Veasy also brought a retaliation claim, which the district court disposed of in the

Sheriff’s favor. Although Veasy references that claim in his issue statement and facts, he makes

no mention of it in the argument section of his brief, so it is abandoned. Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).

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guaranteed under § 1981. See Butts v. County of Volusia, 222 F.3d 891, 894–95

(11th Cir. 2000).

Absent direct evidence of discrimination, courts apply the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

04, 93 S. Ct. 1817, 1824–25 (1973), when evaluating discrimination claims under

§ 1981 and § 1983. See Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805–06

(11th Cir. 1995); Standard, 161 F.3d at 1331. “Under that framework, the plaintiff

must first establish a prima facie case of discrimination, typically by showing that

she was a qualified member of a protected class” and that she was “subjected to an

adverse employment action in contrast to similarly situated employees outside the

protected class.” Alvarez, 610 F.3d at 1264. If she does, then the burden shifts to

the defendant to articulate a legitimate, non-discriminatory reason for its action.

Id. If it does, the burden shifts back to the plaintiff to show that the employer’s

proffered reason is actually pretext for discrimination. Id.

We assume without deciding that Veasy has made out a prima facie case for

discrimination. Sheriff Bradshaw articulated a legitimate, non-discriminatory

reason for Veasy’s termination — that Veasy repeatedly refused to comply with a

direct order from Sergeant Combs to go to Coach Comp for drug testing, and that

incident was one in a long line of insubordination offenses. See Carter v. City of

Miami, 870 F.2d 578, 584 (11th Cir. 1989) (concluding that an employer

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“demonstrated a legitimate, nondiscriminatory reason” for firing an employee

when he “point[ed] to several specific acts of insubordination” by the employee).

That leaves pretext.

To prove pretext Veasy must show that Bradshaw’s proffered reason is so

weak, implausible, inconsistent, incoherent, or contradictory that a reasonable

factfinder could find the reason unworthy of credence. Alvarez, 610 F.3d at 1265.

Employers may fire an employee for “a good reason, a bad reason, a reason based

on an erroneous fact, or for no reason at all, as long as its action is not for a

discriminatory reason.” Chapman v. Al Transport, 229 F.3d 1012, 1031 (11th Cir.

2000). Veasy argues that Bradshaw’s reasons are pretext because Veasy did not

violate the written drug test policy, Bradshaw deviated from proper procedures,

and Bradshaw treated more leniently two similarly situated white employees.

Those arguments fail.

First, Veasy argues that he did not violate the Sheriff’s Office drug testing

policy because he arrived at Internal Affairs prepared to give a urine sample, and

that is all that the written policy requires. Although an employee who is

terminated based on allegations of misconduct may demonstrate pretext by

showing that he did not engage in the insubordinate conduct, see Muňoz v.

Oceanside Resorts, Inc., 223 F.3d 1340, 1345 (11th Cir. 2000), Veasy was

insubordinate. Even though the Sheriff’s Office written policy requires selected

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employees to report to Internal Affairs, the office unofficially changed its policy a

year and half before Veasy was selected. Veasy admits that he refused to travel to

Coach Comp to take a drug test in compliance with that policy. He also admits

that he refused two direct orders from a supervisor in violation of a different rule.

Next, Veasy argues that Bradshaw violated Sheriff’s Office policies and

procedures by considering his past conduct because the policy states that “[m]ajor

infractions that occurred more than three years prior to the current infraction

should be disregarded” when making disciplinary decisions. Although

“[d]epartures from normal procedures may be suggestive of discrimination,”

Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985), Veasy has not shown

that Bradshaw departed from the procedures laid out in the policy because the

policy also requires supervisors to “be alert to prior misconduct which indicates a

trend.” And in any event, two of Veasy’s past insubordination offenses had

occurred in the three years leading up to his termination.

Last, Veasy argues that Bradshaw gave preferential treatment to two

similarly situated white deputies. Comparator evidence has relevance at the

pretext stage. Rioux v. City of Atlanta, 520 F.3d 1269, 1277 (11th Cir. 2008). In

determining whether employees are similarly situated, “it is necessary to consider

whether the employees are involved in or accused of the same or similar conduct

and are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555, 1562

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(11th Cir. 1997). Neither of Veasy’s comparators was similarly situated.

The first deputy, like Veasy, refused a direct order from a superior to submit

to a breathalyzer test after he was suspected of driving under the influence in his

work-issued vehicle. And like Veasy, that deputy was terminated. But before the

termination became final the Palm Beach County Police Benevolent Association, a

police union, intervened and presented extenuating circumstances for the deputy’s

refusal. It negotiated a settlement on the deputy’s behalf, and instead of

termination, he was suspended for 80 hours without pay. Bradshaw explained that

he agreed to the settlement because he “thought there was some reasonable

extenuating circumstance.” He also stated that the deputy “did not have any prior

history of refusing a direct order. Any insubordination.” In contrast Veasy was

not a member of the union, did not offer to settle, and had an extensive history of

insubordination. 3

The second deputy comparator was asked to submit to a drug test after he

was suspected of stealing narcotics. He responded that he could not because he

3

Veasy argues that Sheriff Bradshaw cannot rely on Veasy’s past conduct as a

distinguishing factor because Bradshaw did not consider any evidence of past conduct at the time

he made the decision to fire him. Veasy notes that in Bradshaw’s deposition the Sheriff states

only that he fired Veasy for violating Sheriff’s Office rules. But that testimony does not mean

that Bradshaw did not also consider Veasy’s prior history. Other evidence shows that Bradshaw

reviewed, signed, and concurred in Captain Milo’s recommendation, which outlined Veasy’s

disciplinary history and suggests termination “[b]ased on th[at] disciplinary history.” And

Bradshaw later asserted that even if the police union had approached him he would not have

rescinded Veasy’s termination because Veasy has a “record of discipline for other

insubordination offenses.”

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was “en route to a [treatment] facility.” At first his superior told him to remain at

his house, so that he could give a sample before leaving for treatment, but later the

superior told him not to “worry about the urine sample, [and] just go to [his]

treatment facility.” When he failed a drug test at the facility, he was disciplined for

possessing a controlled substance without a prescription and for conduct

unbecoming a member of the Sheriff’s Office. Like the first deputy, he had no

history of insubordinate conduct. And unlike Veasy, he was not disciplined for

refusing to submit to a drug test or failing to follow a direct order, but instead for

failing a drug test. Those distinctions show that neither deputy was similarly

situated to Veasy. See Holifield, 115 F.3d at 1562–63.

When the facts are viewed in the light most favorable to Veasy, he has not

shown that his termination was the product of race discrimination. The district

court did not err by granting summary judgment in favor of Bradshaw.

AFFIRMED. 4

4

Veasy’s motion for leave to file a reply brief out of time is GRANTED. Sheriff

Bradshaw’s motion to strike the reply brief is DENIED AS MOOT, and his motion to dismiss

the appeal is DENIED.

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